Reputation Expert Witness in Libel and Slander Case

After a week-long arbitration before a panel of three arbitrators, a Florida physician received a $1,500,000.00 award against healthcare giant OptumRx, a pharmacy benefits management company associated with United Healthcare. The award, which also required Optum Rx to pay all costs associated with the litigation, included a finding that family medicine physician Jose I. Lopez, […]

After a week-long arbitration before a panel of three arbitrators, a Florida physician received a $1,500,000.00 award against healthcare giant OptumRx, a pharmacy benefits management company associated with United Healthcare. The award, which also required Optum Rx to pay all costs associated with the litigation, included a finding that family medicine physician Jose I. Lopez, M.D. was entitled to punitive damages in the amount of $1,000,000.00 due to OptumRx’s “intentional misconduct or gross negligence” that was “condoned, ratified or consented to” by Optum’s officers, directors or managers.

Eric W. Rose with Englander Knabe & Allen testified as an expert witness and addressed the effects of disseminating the false information and the impact on the doctor’s professional reputation. Rose also testified about the appropriate standard of care that should have taken place and outlined steps Dr. Lopez should take to recover his good professional reputation.

The Panel of Arbitrators determined that OptumRx, Inc.’s wrongful conduct was ‘motivated solely by unreasonable financial gain and the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the managing agent, director, officer, or other person responsible for making policy decisions.

The case arose after Optum Rx publicly and repeatedly made false statements about Dr. Lopez, wrongly labeling him as a physician-sanctioned by the Office of Inspector General. In actuality, Optum Rx had misidentified Dr. Lopez. The Jose Lopez who was sanctioned by OIG lived in another city in Florida and was not even a physician. The Panel of Arbitrators concluded that Optum Rx injured Dr. Lopez’s reputation in the community by falsely advising pharmacies, Dr. Lopez’s patients, and others that Dr. Lopez was a sanctioned provider. OptumRx failed to acknowledge the mistake and continued making the false statements despite repeated attempts by Dr. Lopez to get OptumRx to investigate whether OptumRx had identified another person with a similar name.

The Panel concluded that the “clear and unmistakable import of the false statements was that Claimants had engaged in some improper conduct sufficient to merit a “penalty, punitive or disciplinary action,” which is a definition of “sanctioned. The Panel noted that the “statements conveyed the false notion that Claimants had committed some offense in the medical profession sufficient to be disciplined and excluded as a Medicare provider – only leaving to the audience’s imagination which bad act, whether it be fraud, malpractice, etc., led to the punishment. In reality, Dr. Lopez has always been in good standing with the state licensing agency, and with Medicare.

The Panel determined that the evidence established to a clear and convincing standard that OptumRx, Inc. was aware of a problem with physicians being improperly listed as “sanctioned” and was specifically aware of this problem with Dr. Lopez. However, OptumRx, Inc. was unwilling to “take the few hours necessary to correct the information before publishing the information and did not engage in any efforts to correct its…continual misidentification.